The ECJ was asked to rule in a case involving the territorial dispute between the UK and Spain about Gibraltar. A Spanish nature area listed as a site of Community importance (SCI) under the Habitats Directive 92/43/EEC was partially covering UK territory – the UK claimed – and partially overlapping with a UK site already listed under the same directive. The UK demanded that this Spanish site was “de-listed” by the Commission. The Habitats Directive, as modified by Regulation No. 1882/2003, demands that each Member State proposes sites of its territory that bear Community importance. The Commission is helped by the Habitats Committee that is composed of by representatives of each Member State, so including a UK representative.

The first 2006 Habitats list of SCI’s only contained a site proposed by the UK called “Southern Waters of Gibraltar”. The second updated list was adopted via Commission Decision 2009/95/EC and included both the UK and the partially overlapping Spanish site. The latter decision had been prepared with the help of the Habitats Committee, and was notified to the UK on 16 December 2008. It seems that the overlap and territorial issues were not noticed in the UK, and no objections were raised against that decision. Only when a new decision about the third updated list was being prepared in October 2009, and the UK and Spanish sites were to be listed again, the UK brought forward its objections against re-including the Spanish site. The Commission stated that its tasks did not involve checking territorial rights of the sites concerned. When all representatives except the UK one voted for the new third list, the Commission adopted decision 2010/45/EU in December 2009. The UK asked the General Court to partially annul that decision, but that request was dismissed since the UK should have contested the first decision 2009/95 that added the Spanish site to the Habitats list; the 2010 decision was merely of a confirmatory nature (case T-115/10). Since no new facts emerged, the General Court declared that the 2010 decision cannot be reassessed and UK’s action was inadmissible.

In its appeal, the UK argued that the General Court failed to make the necessary assessments whether a party “could have had prior knowledge” on the “overlapping” event, and Spain failed to fulfil its relevant obligation to notify. The ECJ ruled that the UK was “simply challenging the assessment of the facts” and pleads no “distortion of the clear sense of the evidence”. As a result, this argument does not constitute a subject under review by the ECJ, since appeals can deal with points of law only.

The UK had also argued that the correct test by the General Court would be whether the UK and not the Commission could have known about the overlapping. The ECJ noted that the General Court had determined that the UK could have known of the overlapping of the sites when decision 2009/95 was adopted. It added that even when the General Court committed an error of law in examining whether the Commission also could have known of the overlap, that would not have changed the outcome of the case. In appeal, in accordance with settled case-law, such a plea is considered ineffective and must be dismissed (see para 45). The entire UK appeal was thus dismissed.

General

Commission proposes 7th Environmental Action Plan

The 6th Environmental Action Programme (EAP) expired in July 2012. After a lot of discussions the European Commission proposed a successor. The proposal for AEP7 has as a title “Living well, within the limits of our planet”. The title is not very catchy, but what about the content?

Article 2 of the proposal enumerates the objectives of the programme: Protecting, conserving and promoting EU’s natural capital; transforming the EU into a “resource-efficient, green and competitive low-carbon economy”; protecting EU citizens’ health and prosperity from environment-related threats; maximising EU’s environmental legislation benefits; ameliorating the base for environment policies and their evidence; safeguarding investment in the field of environment and climate policies; better integrating and harmonizing environmental legislation and policies; promoting sustainability in the EU cities; and extending the EU’s performance in dealing with local and global challenges.

The EU thus aims at better implementation and at improving its environmental policies. In the proposal, there are references to coherent, effective implementation of the EU Biodiversity Directive, EU air quality legislation, Noise Legislation, REACH Regulation, the Blueprint of protecting water resources, sustainable fishing and marine litter reduction, the Climate and Energy Package and the EU Waste Management Legislation. Additionally, the Commission highlights the importance and necessity for Research and Innovation that will ensure better opportunities and higher incentives for investment. Furthermore, it is proposed to improve the exchange of information among the Member States and set up more effective inspections by them. Member States should also work on the adoption of a systematic approach to risk management, and focus on the detection of gaps in knowledge on environmental challenges. The proposal stresses the need to strengthen an evidence based approach, where available information can be used better, for instance by ensuring comparability of data and arranging for wider and easier access to information. Also, the existence of gaps in knowledge and adequate modelling tools is mentioned, needed to better understand complex issues such as climate change and disaster impacts. Fortunately, it is also stressed that “available evidence fully warrants precautionary action in these areas” (para 69).

The proposal also underlines the need to eliminate harmful subsidies, to facilitate access to eco-innovation, to fully utilise the EU environmental funding and develop further market-based instruments, including taxation pricing and charging. Furthermore, the sustainability performance of cities must be assessed and the prospects of relevant financial help examined. Lastly, the EU has to ensure that Rio+ outcomes are fully integrated in its internal and external policies, and needs to focus on an effective cooperation with the UNEP and other international Institutions.

One of the first reactions to the proposal stems from the European Environmental Bureau (EEB). It welcomed the proposal and its perspectives for the respect of planetary boundaries, and the inclusion of key challenges like unsustainable consumption and production. The EEB did regret that the Commission failed to include concrete targets. Particularly, the EAP7 failed to include the importance of reducing the EU’s ecological footprint by 50%. Moreover, despite the fact that it did include the GHG emissions target, it omitted any suggestion for carbon budgets or an energy savings strategy. Another omission is a coherent target for reduction in resource use – the EAP7 only refers to “resource efficiency of products”. Additionally, EAP7 does not include any specific measures in relation to agriculture, fisheries, transport and EU ETS. Additional concerns have also been submitted by the EEB at their “Input to the EU Environment Council Meeting” which highlighted the need to set a GHG limit at 350pp and not 450pp for reasonable results, the importance of achieving healthy fish stocks by 2020. Lastly, the EEB expressed concern over the legal framework for nano-materials.

The eightheenth Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) – COP18 took place in Doha, Qatar, from 26 November to 7 December 2012. The main outcome of the Doha conference is the agreement on the so-called “Doha Climate Gateway” which includes a package of decisions adopted by both COP18 and CMP8 (eighth Conference of the Parties serving as the Meeting of the Parties to the Protocol).

The first decision of the package is the establishment of the second commitment period of the Kyoto Protocol which will run from 2013 to 2020 (eight years). Under this second commitment period, Parties agreed to a global greenhouse gas emissions reduction equal to 18% by 2020 compared to 1990 levels; during the first commitment period the global emissions reduction effort was merely 5%. Developed country Parties who decided to join the second commitment period of the Protocol and be included in its Annex B are: the European Union, Switzerland, Norway and Australia. Together, they constitute some 12% of global emissions. Former Annex B Parties with commitments in the first commitment period such as the Russian Federation, Ukraine, New Zealand and Japan will not be part of the future mitigation actions under the Protocol. The decision on the second commitment period of the Kyoto Protocol also includes other relevant amendments to the Protocol:

An ambition review mechanism

The provisional application of the amendment pending its entry into force

The continuation of the flexible mechanisms with limits on the participation of Annex B Parties who will not inscribe new commitments

Limits on the use of AAUs surplus and carry-overs

A link between the new market based mechanism under the Convention and the Kyoto Protocol

COP18 also decided to conclude the works of the Ad-hoc Working Group on Long-term Cooperative Action (AWG-LCA) and delegate the unfinished work to the other existing subsidiary bodies of the Convention. To this aim COP18 decision on the AWG-LCA launched a series of work programmes to be conducted by the Subsidiary Body for Implementation (SBI) and the Subsidiary Body for Scientific and Technological Advice (SBSTA) on the following themes:

to continue the process of clarifying the quantified economy-wide

emission reduction targets of developed country Parties;

to further the understanding of the diversity of the nationally appropriate mitigation actions;

results-based finance in 2013 for REDD+;

to elaborate a framework for various approaches;

to elaborate non-market-based approaches;

to elaborate modalities and procedures for the new market-based mechanism;

extend the work programme on long-term finance.

Further, an agreement was established obliging developed country Parties to provide compensation for losses due to the adverse effects of climate change to developing country Parties. Naturally, countries debated on the matter, however all of them sidestepped the question of any admission of legal liability. In addition to that, there are still some more unresolved issues. Firstly, it is unsettled whether the compensation will stem from existing humanitarian aid or aid from natural disasters. Furthermore, it is not clear whether a new competent institution should be established or an existing international one should deal with the compensation scheme.

On the future legally-binding agreement for all Parties the Ad-hoc Working Group on the Durban Platform for Enhanced Action (ADP) decided to continue up to 2015 the discussion on the vision for the agreed outcome after 2020 and on the pre-2020 ambition gap. The main goal of this group is to adopt the new architecture of the climate change regime by 2015 for this to enter into force by 2020, in line with what was agreed in Durban at the previous at the end of 2011.

The European Commission adopted an implementing decision on recognition of the ‘Roundtable on Sustainable Palm Oil RED’ (RSPO-RED) scheme for demonstrating compliance with the sustainability criteria under the Fuel Quality Directive and the Renewable Energy Directive (RED). According to this Decision, the Commission accepts that this scheme is in compliance with the sustainability criteria set by the above Directives. The Decision will be in effect for five years after its entry into force. The RSPO-RED concerns a voluntary scheme which is based on “Principles & Criteria”, “Supply Chain Certification Standard” and additional prerequisites in accordance to the RED.

In July 2011, the Commission also recognised seven voluntary schemes. Only biofuels meeting the sustainability criteria set by the Directives can receive government support and count towards mandatory national renewable energy targets. Basically, the biofuel approved under a certification scheme is to be characterised as “sustainable” in the sense of the Directives.

The Roundtable welcomed the Commission’s decision (see their announcement). Environmental groups opposed the Commission’s decision and emphasised the high threat of deforestation, peat land destruction, climate change and human rights’ violations, in spite of the RSPO-RED certificate. In their view, countries that face the highest risks are Indonesia and Malaysia because their economies are growing fast, causing an even more demand for biofuels and higher risks for deforestation. Because of such reasons, Greenpeace and Friends of the Earth expressed their disapproval of the Commission’s decision. They also highlighted that the EU institution had overlooked its own analysis. For instance, the Commission Staff Working Document for RED clearly states that “emissions from peat conversion have a larger impact on the overall emissions attributed to oil crops, particularly for palm oil than for bioethanol crops”. Because of the certification scheme granted to RSPO-RED, Greenpeace and Friends of the Earth urged the Commission to postpone any authorization on biofuels that are found to have high ILUC effects. The EU director general for energy policy defended the Commission’s choice not to include the ILUC factor in the new proposal for the RED Directive based on their conclusion that the ILUC theory still lacks substantially. Instead of this they decided to set a 60% threshold on GHG emissions. On the latter issue, we reported already in EEL News Service 2012/10.

The Council of the EU reached conclusions on Renewable Energy during the “Transport, Telecommunications and Energy Council meeting” of 3 December 2012. It stressed the importance of achieving the 20% target of renewable energy sources (RES) in energy consumption by 2020 in line with the Europa 2020 Strategy, and ensuring security of supply, innovation and competitiveness.

The Council set a number of priorities. First of all, the “Internal electricity market opening” was discussed. The internal energy market in electricity and gas is to be fully completed by 2014. More competition in the energy sector is vital; this requires full implementation and harmonisation of the internal energy market legislation. Additionally, Member States should assess the bottlenecks and different variables that appear in their territories, collaborate with the Commission on the effects and try to facilitate the integration of a rising number of renewable power producers.

Secondly, the Council agreed for a “Better market integration of RES” through the establishment of open and transparent markets. National governments must provide their full support to create the proper incentives for investment. Further, they must eliminate subsidies that harm the environment or the economy, like those for fossil fuels. The Commission can provide “non-binding guidance” to promote profitable solutions in R&D.

Thirdly, the Council acknowledged “Cooperation and Trade” by promoting cooperation, effective information exchange and international cooperation for the progression of RES. It also agreed on “Infrastructure and Consumers” issues which are to improve due to the Energy Infrastructure Package, the respect of the Energy Efficiency and the Buildings Directive. For consumers, the Ministers stressed the need for a better metering system, the provision of information on their fuel mix consumption and the proper dissemination of the multifaceted positive aspects of RES. Lastly, they upheld the importance of supporting “Technology innovation and Sustainability”, through the development of R&D and its further promotion, including the development of the SET-Plan which supports new energy technologies. It is further worth mentioning that the Council stressed that any development should be in accordance with the Commission’s proposals for amending the Renewable Energy Directive (RED), on which we reported in EEL News Service 2012/10.

Following this Council, the Commission is to initiate the conduct of non-binding guidance regarding the national support schemes and the cooperation mechanisms. In addition, it is important for the Commission to start an impact assessment based on the use of RES and Energy Infrastructure. The Commission should present its conclusions by 2014 and make an overall review of the Directives for an EU post-2020 RES framework.

See also:

Press Release of the 3204th Council meeting “Transport, Telecommunications and Energy”, 03.12.2012

China and UK step up shale gas extraction

China has shown increased interest in shale gas extraction. With the US economic boost thanks to shale gas extraction probably in mind, the Chinese Ministry of Land and Resources recently organised an auction for granting licences for extraction of shale gas. A considerable amount of companies showed interest: there were 152 bids from 83 companies. China is estimated to have almost 50% more shale gas than the US. Government’s estimates showed that some 25 trillion cubic metres of resources could safeguard the energy needs of the country for 200 years. China has set very ambitious goals of extracting 6.5 billion cubic metres per year until 2015 and reach more than 100 billion cubic metres by 2020.

The country is believed to be aware of the environmental and human safety risks. One specific challenge for China is the need of huge amounts of water, needed to extract shale gas. The Chinese government realises that shale gas extracting is a developing process and the country’s geological characteristics are particularly challenging. To deal with these obstacles, they directed their attention to companies that are active in shale gas extraction in America by investment and acquisitions proposals.

Meanwhile, in December 2012, the United Kingdom decided to move towards shale gas extraction and raised the ban that was imposed in May 2011. At that moment in time, UK stopped fracking because of earth tremors close to Blackpool.

As we reported in EEL News Service 2012/10, the European Parliament voted for shale gas under conditions. The UK aims at covering its resources’ need and becoming a leader in the sector.

The European Chemicals Agency (ECHA) in a press release presented the preliminary results of the REACH-EN-FORCE-2 project that investigated the “safety data sheet’s” (SDS) quality. The results manifested a high percentage of non-compliance among the chemical formulators. They are obliged to comply with the SDS requirements, based on article 31 Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals (REACH), and with and the “Regulation on Classification, Labelling and Packaging of Substances and Mixtures” (CLP). The safety data sheets form a communication tool within the supply chain of the substances, and with the users who are familiarised with the substances’ characteristics.

According to the preliminary results of the project, Member States showed genuine efforts to manage harmonization in the enforcement process. However, 52% of the companies submitted non-compliant SDSs. The non-compliance with the pre-registration obligation reached 12% and 25% of the companies failed to comply with the obligations of CLP.

Meanwhile, last October, the European Environmental Bureau and ClientEarth released a report that also highlights some of the impediments of the REACH Regulation.

See also:

“Identifying the bottlenecks in REACH implementation; The role of ECHA in REACH’s failing implementation”, EEB & ClientEarth, 17.10.2012

Europe uses less ozone-depleting substances (ODS)

The European Environmental Agency (EEA) presented a report that relates to the production and use of chemicals which harm the planet’s ozone layer. Such chemicals are mainly used for spray cans, fire extinguishers and coolants. The ozone layer or stratospheric ozone protects the earth and humans from ultraviolet light from the sun reaching the earth’s surface. That is why the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted in 1987 and states agreed to reduce such chemicals.

The EEA expressed positive results from Europe. Specifically, the European Union managed to significantly reduce the consumption of such chemicals, and the production is also steadily decreasing since 2006. In 2009, due to the economic crisis, the decline was particularly intense. This was followed by an increase in 2010 but in 2011 production decreased again. The amount of imports has decreased too since 2006 and again an increase became apparent between 2010 and 2011. Imports are mainly from China and the US.

Exports of ODS have also decreased since 2006 by an average of 27% per year. According to the report, this decrease can be justified by the increasing use of the production for “feedstock” use. This means that the chemicals are used for the production of other chemicals that are still non-ODS chemicals. This kind of method has substantially increased; the report shows that “feedstock” chemicals are now used to produce 95% of chemicals, calculated in metric tonnes.

See also:

“Europe using less ozone-damaging chemicals”, EEA, 05.12.2012

“Ozone-depleting substances 2011 – Summary”, EEA, 05.12.2012

Reviews

“The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law”

The Court of Justice of the European Union in Luxembourg is celebrating the 60th anniversary of its founding. To celebrate this, it has published a volume with more than 700 pages discussing on its case law and providing insight into its role in the progress of European integration. The book includes contributions from eminent jurists from almost all the EU Member States and covers a wide variety of all main EU areas. The book is divided into four chapters dedicated respectively to the role of the Court of Justice and the Judicial Architecture of the European Union, the Constitutional Order of the European Union and the Area of EU Citizens and the European Union in the World. Among the articles, there are some with relevance to environmental law. For example the article “Exclusive external competences: constructing the EU as an International Actor” elaborates the transformation of the EU into an “international actor” in international law making, including environmental law. Another article “Le principe de l’ effet utile du droit de l’Union dans la jurisprudence de la Cour” demonstrates the principle of effectiveness and its various effects by also including jurisprudence related to environmental cases.

The main theme of the Conference is environmental science and development. Various topics will be covered in the fields of health and environment, global environmental change and ecosystems management, environmental sustainability and air pollution and control. In the framework of these topical areas, various issues will be discussed, including: climate change, global warming, biofuels, deforestation, wetlands, environmental regulation and monitoring and waste management.

The Economist will host the World Forest Summit which will focus on sustainable forest management. The Conference concentrates at the importance of forests and their impact on the environment. Issues to be covered are the role of forests in mitigating climate change, the interaction between forests, global warming, population growth and the evolution of technology, government mechanisms to improve land-use planning and ensure sustainable development and lastly, the role of regulation in combating deforestation.

This cross-disciplinary Conference covers technical and legal aspects in relation to water management, climate change, sustainability, water security and their interactions and effects with energy, food and carbon. The Conference will also include presentations of case studies and best practices.